For affirmance -- Chief Justice Weintraub, and Justices Heher, Burling, Jacobs, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Francis, J.
An injunction was issued by the Chancery Division of the Superior Court against defendant Ramsey Golf and Country Club, Inc., barring the further use of the men's and women's third tees of its golf course. The Appellate Division affirmed, 50 N.J. Super. 127 (1958), and this Court granted certification.
The issue presented is a novel one. The facts which created it are not seriously in dispute. The physical setting which forms its background is the product of the ingenuity of a real estate developer.
In the 1940's the National House and Farms Ass'n, Inc., undertook a combination residential and country club development in the boroughs of Ramsey and Allendale, Bergen County. A nine-hole golf course was laid out, surrounded on all sides by home building lots. Only eight greens were provided, but the holes were so arranged that one green was to be played twice. The development tract contained
three small lakes, one of which, called Mirror Lake, became the water hazard hole about which this controversy centers. A club house and tennis courts were constructed. National organized the defendant Ramsey Golf and Country Club, Inc., for the purpose of managing the recreational facilities. Under the sales plan the purchaser of a lot or a home automatically qualified for membership in the club. In 1945, after an undisclosed number of lots had been sold, the golf course, the clubhouse and the recreational areas were conveyed to defendant. Apparently at a later time in some manner associate memberships were authorized. They were not dependent upon ownership of a lot or home in the development.
In 1949 the plaintiffs, husband and wife, purchased a lot in the development. Naturally, they were aware of the existence of the golf course, and they became members of the club. They commenced construction of a home on the lot in 1950, after which they acquired two adjoining parcels. One side of their property adjoins the fairway of the second hole. The rear line of the three lots is near Mirror Lake but does not run to the water. It is separated from the edge of the lake by a strip of land varying in width from 11 to 40 feet, which is owned by the golf club.
In 1948 the present third women's tee was built. Its location was designed to create a short par 4 water hole. A successful drive required a carry over the water at a point about 25 yards from the northerly edge of the lake. It seems clear, as the Appellate Division found, that the tee had been in continuous use since its installation, although the plaintiff Ralph Sans testified that he did not notice it until 1950 when his home was being built. Subsequently, apparently in 1949, a separate men's tee was built for this hole about 30 feet farther from the northerly edge of the lake. The purpose was to lengthen the water hazard for the men. Both tees are on golf club property. According to Sans, the men's tee is "roughly" 50 to 60 feet from the southerly corner of the rear of his house; the women's tee is closer.
In order to reach the third tees from the second green, the golfers walk along the 11-to 40-foot-wide path (owned by defendant and described above) separating plaintiffs' rear lawn from the lake.
Plaintiffs moved into their new home in June or July of 1951, and have lived there since that time. They have two children, who were 10 and 11 years of age when the case was heard. As the membership of the club grew, play on the golf course increased, and the players' use of the third tees and the path to reach them became annoying and burdensome to plaintiffs. They began to complain to defendant's officials, and thereafter and until this suit was brought, they sought to effect the relocation of the tees to the north of the northerly line of the lake. Such a change is feasible. In fact, when a stay of the restraint issued by the trial court was denied, a new temporary tee was built and has been in use pending the determination of this appeal. The objection of defendant to adopting it permanently is that an attractive short par 4 water hole is transformed into an ordinary par 3 one on a nine-hole course which already has three par 3 holes.
Plaintiffs' complaint charged defendant and its members with trespassing on their land by using the pathway along the lake in walking to the ladies' and men's tees in question. This contention was abandoned when it appeared that plaintiffs did not own the strip and that, although National had not conveyed it to defendant in the original 1945 deed, a transfer had been made by deed in 1955. Other allegations, however, in company with the issues appearing in the pretrial order, were deemed by the trial court to present a claim that the location of the tees and the manner and incidents of their use by defendant and its members constituted a private nuisance as to plaintiffs. The trial was conducted on the latter basis.
Proof was adduced that in the golf season play begins on the third tees as early as 6 A.M. and continues throughout the day until twilight. On week-ends and holidays the activity is more intense. Sans spoke of an "endless stream of ...